Health Services Union v Alfred Health
[2014] FWC 1144
•11 MARCH 2014
[2014] FWC 1144 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Health Services Union
v
Alfred Health
(C2013/3870)
Health and welfare services | |
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 11 MARCH 2014 |
Dispute concerning reclassification - Psychologist Grade 2 or Grade 3
[1] On 8 April 2013 the Health Services Union of Australia (HSU) made an application for the Fair Work Commission to deal with a dispute in accordance with the Public Sector (Medical Scientists, Pharmacists and Psychologists) Multi-Enterprise Agreement 2008-2011 (the agreement).
[2] The HSU submits that Dr Jacinta Bleeser is entitled to be reclassified from a Grade 2 psychologist to a Grade 3 psychologist, within sub-clause 8.3 of Schedule A1 of the agreement. Alfred Health rejected Dr Bleeser’s request for reclassification on 31 December 2012 and confirmed its rejection on 21 February 2013.
[3] The matter was conciliated by another member, no agreement was reached, and it was allocated to me for arbitration pursuant to clause 9.8.1 in September 2013. Directions were issued for a hearing in October 2013. Dr.Bleeser requested an amendment to the hearing dates due to her leave commitments. The directions were amended by consent and the matter was listed for hearing in December 2013.
[4] Section 739 of the Fair Work Act 2009 (the Act) authorises me to exercise powers under the dispute settling procedure, clause 9.8, which includes the power of arbitration. No objection to jurisdiction was taken. I am satisfied that I have the power to determine this application in arbitration.
[5] Pursuant to s.596, the HSU and VHIA (Victorian Hospitals’ Industrial Association) appeared on behalf of their members. The matter was argued with a high degree of vigour on each side.
[6] Directions were issued and submissions and other evidentiary material filed.
[7] The following witnesses gave evidence:-
Dr J Bleeser
Ms J Bremner
Dr C Thorpe
Ms G Pedwell
Mr G Habib
Ms L Katona
[8] Written closing submissions were filed.
[9] I have had regard to all the submissions and evidence. There was no question that Dr.Bleeser is on the material before me a well respected and competent employee.
Authorities
[10] In Amcor Limited v Construction Forestry Mining and Energy Union 1 Gleeson CJ and McHugh J said in a joint judgement:
“The issue in these appeals is whether, following a corporate reorganisation described as a demerger, certain employees became entitled to redundancy payments under the provisions of an industrial agreement. The employees worked in the same jobs, under the same terms and conditions, following the demerger, but, in consequence of the corporate restructuring, their employer changed.
The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, and the nature of the particular reorganisation. There is nothing inherent in the idea of redundancy that justifies an expectation either that redundancy payments will, or that they will not, become payable in the event of a reconstruction, merger, or takeover. Similarly, there is nothing inherent in the nature of a corporate reconstruction that justifies an expectation either of continuity of a legal entity, or of succession, or of discontinuity. Thus, depending upon the legal regime under which it takes place, a merger between two companies might or might not put an end to the merging entities. The effects upon their pre-existing rights and obligations, and the question of succession to these rights and obligations, will require examination of the relevant legal (usually statutory) framework.”
[11] In that decision, Kirby J said:
“The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:
‘It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand’. ” 2
Agreement Clauses
[12] The agreement definitions of Psychologist Grades 2 and 3 in the agreement are set out in Attachment A to this decision.
Submissions and Discussion
[13] One key issue between the parties is whether or not Dr.Bleeser is ‘engaged on psychological work requiring advanced knowledge and skills’ within clause 8.3.3(a). There are various ‘indicators’ in that clause as to what this work is. Another key issue is whether or not Dr.Bleeser has a main role as a case worker in a multi-disciplinary team rather than as a clinical psychologist 3.
[14] Dr.Bleeser gave evidence that she did meet these criteria. She gave evidence that she was responsible for managing complex clinical cases, and gave examples of those cases. She said that she regularly provided secondary consultation, contributed to guidelines, policies, and procedures, had the required experience and skills to contribute to supervision of master and doctoral students, and other matters. She said that:
‘29. By definition, only patients with severe symptomatology and in complex circumstances are accepted into CYMHS.
30. Over the past four years, I have been allocated patients with severe psychopathology, significant complexity in their family and/or life circumstances and at significantly higher level of risk of life threatening self harm, suicide or death. It is this level of risk that distinguishes my contemporary caseload to my initial caseload at Alfred CYMHS.
31. As case manager, the psychological work in which I am engaged with high risk patients requires me to apply my advanced clinical knowledge and skills to build rapport with severely mentally ill young patients who typically feel marginalized, misunderstood and scared; continually assess their risk of self-destruction/safety and respond (or not) as clinically indicated; contain the high anxiety of and garner the support of the patient’s significant others (parents, school, youth workers etc) to support the treatment goals to recovery; and co-ordinate different teams of professionals (from in-house, private psychologists and psychiatrists, school welfare staff, youth workers, family support workers) assembled around each patient to remain focused on the treatment goals and work cohesively towards them. In managing the system around the child/young person and their family, I am responsible for exercising sound clinical judgement in the conduct of secondary consultations, case liaison and case conferences. In carrying out my responsibility as case manager, I make significant clinical decisions about the risk and treatment of patients, including escalation to supervisor or Consultant Psychiatrist in specified circumstances.
32. During the psychological work of assessment, I use my advanced knowledge and skills in child and adolescent diagnosis and formulation to understand each patient’s presentation taking account of developmental, family, systemic as well as biological, psychological and social factors. This involves skilled clinical and diagnostic interviewing to answer a referral question/s and may include the administration (or interpretation) of psychometric tests. It may also include referral to one or more different disciplines for specialist assessment to investigate communication, occupational, educational or medical questions that I have identified during the assessment. At the end of the assessment, my role is to draw all the assessment information and data together to make meaning of the case (psychiatric diagnosis and formulation) and develop a treatment plan with the child and family.
33. I am responsible for conducting psychometric assessments of patients referred by other case managers. This involves responsibility for selecting and administering tests (usually licensed only for psychologists’ use) that will assist in answering the referral question, participating in case conferences contributing psychological opinion in the diagnosis, formulation and treatment planning of the case.
34. I draw from a range of psychological treatments that were core to my training as a clinical psychologist, including individual psychotherapy (play therapy with young children and talking therapies with young people), child focussed parent psychotherapy with parents or carers, and family therapy. Over the past six years I have focussed on developing my clinical skills in group psychotherapy and am a very active member of the Groups Program at Alfred CYMHS.’ 4
[15] The HSU submitted that Dr.Bleeser is employed as a Clinical Psychologist in the Child and Youth Mental Health Service (CYMHS), and that ‘complexity is the key requirement for admission of a child or young person into the CYMHS Service of Alfred Health’ 5. In other words all work performed by Dr.Bleeser would almost by definition be complex in nature and meet the requirements of clause 8.3.3(a) that she be ‘engaged on psychological work requiring advanced knowledge and skills’.
[16] Mr.Habib gave evidence 6 that he had reviewed a number of cases in which Dr.Bleeser was engaged in clinical work, and could not find evidence that Dr.Bleeser was engaged in service provision that would meet the requirement that Dr.Bleeser was engaged in this work, and that she did not meet any of the criteria in Clause 8.3.3(b) (c) or (d). Ms.Katona gave evidence to similar effect7, as did Ms.Pedwell8. Generally speaking their evidence was that the work performed by Dr.Bleeser is of the nature to be expected of a Grade 2 psychologist.
[17] The HSU sought to persuade me to give no weight to the evidence of Ms.Katona, Mr.Habib, and Ms.Pedwell. The HSU described Ms.Katona’s evidence as ‘hearsay’ and said that she lacked knowledge of Dr.Bleeser’s work 9. However, Ms.Katona is the Manager of Psychology Services Alfred Health, with professional accountability for all Psychologists employed by Alfred Health. Dr.Bleeser works in the Alfred Child and Youth Mental Health Services (CYMHS)10. Ms.Katona has a BA Hons in psychology and Masters in Clinical Psychology, and is registered as a psychologist, and has a wide range of work experience as a psychologist.
[18] Ms.Katona undertook a random sample of Dr.Bleeser’s files 11. She is well qualified to make the following comments about Dr.Bleeser’s work based on a random sample of Dr.Bleeser’s cases:
‘During May 2013 I undertook to review a random sample (10) of Ms.Bleeser’s cases (file review) in order to further assess whether her work with client’s demonstrated advanced knowledge and skills in psychology. In six of these cases Ms.Bleeser was the designated case manager providing generic mental health case management. In the other four cases Ms.Bleeser was designated as a ‘clinician/psychologist’. In one case she had completed a cognitive assessment and was liaising with the child’s school. In the other three cases there were generic CYMHS assessments, no specific psychological assessments and formulations and no clearly developed psychological treatment plans. The treatments provided by Ms.Bleeser appeared to be a mix of supportive therapy, psycho-education, work on the self-regulation of emotions and cognitive therapy; the interactions between thoughts and feelings. These interventions were within the scope of any fully qualified grade 2 clinical psychologist including new graduates. I do not believe that these cases demonstrated that Ms.Bleeser was providing psychological services requiring ‘advanced knowledge and skills in Psychology’. ’ 12
[19] She described Dr.Bleeser’s work, based on those case examples 13. She also took issue with a number of claims made by Dr.Bleeser about the specific cases cited by her. She said of, for example, the case cited at paragraph 38 of Dr.Bleeser’s statement that ‘these activities should be within the competence of any clinical psychologist as set out in the AHPRA guidelines’. Her evidence was that secondary consultation was a minor part of Dr.Bleeser’s work (p.9), that Dr.Bleeser did not lead or evaluate policy or processes, she was not required to supervise students, and other matters.
[20] Her overall conclusion was that:
‘In summary, with respect to her case examples she describes doing activities (assessment, diagnosis, the use of formal assessment measures, the development and implementation of treatment plans and the provision of psychological therapies, and consulting with other staff) that would be within the competencies of any clinical psychologist even a new graduate.’ 14
[21] The HSU submitted that Ms.Pedwell has no direct knowledge of Dr.Bleeser’s work, and that Dr.Bleeser does not report to her but to Ms.Boots 15. However, Ms.Pedwell is clinically qualified as an Occupational Therapist and is the Operations Manager of CYHMS16.
[22] The HSU submitted that Mr.Habib’s evidence is opinion and irrelevant 17. Mr.Habib is a registered psychologist, has over 20 years experience in Health and Welfare service, is the discipline senior for Psychology at the Early in Life Mental Health Service at Monash Health, which is a Grade 4 Pyschologist position, and is the Deputy Director of Psychology. He undertook a review of cases in which Dr.Bleeser was engaged in clinical work, the cases reviewed by Ms.Katona. He also undertook a review of psychology specific assessments including four cognitive assessments18. In my view he is able to give useful evidence as a result of these reviews about specific aspects of Dr.Bleeser’s work.
[23] Mr.Habib found that there were limitations in the documentation of cases undertaken by Dr.Bleeser. He also said that:
‘The psychological assessments did not involve referrals to Dr.Bleeser for more complex psychological testing to assess specific learning disorders, pervasive developmental difficulties, memory and learning assessments, or assessing for organic difficulties, TBIs or ABIs. The psychological reports in my opinion were consistent with psychological assessments that Grade 2 Psychologists within a Child, Adolescent and Youth Mental Health service could be expected to undertake.’
[24] Weight should be given to his conclusion that he could not find evidence that Dr.Bleeser was engaged in ‘psychological work requiring advanced knowledge and skills including having responsibility for complex clinical cases, providing secondary consultation, and responsibility for the professional supervision of other psychologists.’ 19.
[25] Dr.Thorpe is Dr.Bleeser’s immediate supervisor and team leader. Each had evidence to give which was relevant.
[26] I do not, with respect, agree that the fact that a case is admitted to CYHMS means that a psychologist working within CYHMS necessarily satisfies the requirements of clause 8.3.3(a) as to complexity. Various descriptions of CYHMS work that were tendered refer to complexity, but sometimes in a general context and by reference to the need for a specialist multi-disciplinary team 20. A number of employer witnesses gave evidence about specific cases, and the nature of cases generally in CYHMS. I do not agree that this evidence can be disregarded. Such an approach is also not consistent with the approach taken to reclassification of positions after the 2011 agreement21.
[27] The HSU sought that I draw an inference against the employer for failing to call Ms.Boots 22. However, the employer explained that Ms.Katona is the Head of Pyschology and is responsible for psychology professional practice at Alfred, and made the decision not to reclassify Dr.Bleeser after consulting others including Ms.Boots. Ms.Katona records that as part of her decision making process she consulted Ms.Boots. Ms.Boots told her that she did not support Dr.Bleeser’s reclassification application23, a statement not challenged in cross examination, although a relevance and hearsay objection was taken24.
[28] This is a quite unexceptional management process of decision making. The evidence regarding the consultation with Ms.Boots is clearly relevant as part of an explanation of how Ms.Katona made her decision in her capacity as Manager of Psychology Services Alfred Health, the Head of Pyschology. It is not relevant as substantive evidence that Dr.Bleeser does not meet the criteria. In addition Ms.Pedwell and Dr Thorpe were called, and they clearly had direct knowledge 25. The HSU sought to rebut that explanation on the basis that Ms.Katona was only responsible for professional supervision, and has no direct knowledge26. However, the HSU appears to have understated the management responsibilities and knowledge of employees that Ms.Katona had as Head of Psychology. An employer cannot be expected to necessarily call all management employees involved in such a decision, and some judgement has to be made by it about how much is enough. In my view the explanation for not calling Ms.Boots is satisfactory.
[29] Dr.Bleeser also gave evidence about her cases 27 and work. While Ms.Katona and Mr.Habib conducted a review of randomly selected cases, Dr.Bleeser did not describe the basis on which she selected the cases she discussed. She said that they were ‘examples of complex clinical cases allocated to me since June 2012’. She claims that they are ‘indicative of the nature and complexity of my case load’28, but does not explain why. Overall they do not appear to be reliable evidence on which I could base my decision. In any event I had the benefit of observing the witnesses giving evidence and I generally prefer the evidence led by the employer where it is inconsistent with that of Dr.Bleeser. Even taking account of the difficulty in assessing Dr.Bleeser’s method of selection of cases, Ms.Katona in particular took issue with a number of aspects of Dr.Bleeser’s interpretation of those cases. Dr.Bleeser appeared to overstate the nature of those cases. She also appeared to overstate her overall responsibility for them. Dr.Thorpe has overall responsibility for complex clinical cases, not Dr.Bleeser29. There are also Mr.Habib’s comments on the nature of psychology specific assessments including four cognitive assessments. In Mr.Habib’s view these were not more complex cases.
[30] It also appears that Dr.Bleeser spends 80 per cent of her time on case management, and other work is clinical psychology. This was the uncontradicted evidence of Ms.Pedwell 30. The case management work is undertaken by employees from various disciplines, not exclusively psychologists31, something conceded by Dr.Bleeser32. Dr.Bleeser is engaged in work performed on a multi-disciplinary basis using, in the case of her work, her psychology qualifications, skills and experience. However, a large element of this work appears to be what Ms.Katona calls ‘a generic case management role and the skills she outlines are competencies expected of any case-manager/mental health worker ie. rapport building and engagement, containment of anxiety, co-ordination and liaison with other professionals, conducting case conferences, risk assessment and escalation to the consultant psychiatrist’33.
[31] The HSU submitted that this is psychological work within professional definitions, and that this objection is not relevant or important 34. However, on the material before me I am not persuaded that her work requires the advanced knowledge and skills referred to in clause 8.3.3(a).
[32] I am not satisfied that Dr.Bleeser meets other criteria such as contribution to the evaluation and analysis of guidelines, policies and procedures, and she is not required to contribute to the supervision of students.
Conclusion
[33] Dr.Bleeser does not fall within the classification definition of a Grade 3 Psychologist. I dismiss the application. An order is contained in PR548360.
DEPUTY PRESIDENT
Appearances:
Dr R Kelly and Ms V Belot of the Health Services Union
Mr R Corboy for the respondent and Ms L Katona of Alfred Health
Hearing details:
2013
Melbourne
16 December
Final written submissions:
2014
14 January
24 January
7 February
12 February
Attachment A
8.2 Psychologist Grade 2
8.2.1 Is a person who is registered as a Psychologist with the PBA, engaged in psychological practice, complying with the code of ethics and legal requirements of the psychology profession. Positions at this level are entry level psychologist positions.
8.2.2 A Psychologist Grade 2 shall be provided with regular professional supervision by a psychologist Grade 3 or above. Where there is no Psychologist Grade 3 or above employed in the service, external supervision shall be provided.
8.2.3 For the purposes of gaining specialist endorsement from the PBA, a Psychologist Grade 2 who holds a higher degree in clinical psychology or clinical neuropsychology pursuant to sub clauses 8.6.1 (c) or (d) of this schedule shall be provided with professional supervision from a Psychologist Grade 3 or above that meets the requirements of the PBA.
8.2.4 A Psychologist Grade 2 does not provide professional supervision to other Psychologists including Provisionally Registered Psychologists and/or post-graduate students on placement except for secondary supervision of provisionally registered psychologists as referred to in sub clause 8.1.3 above.
8.2.5 Where Masters or Doctoral students are on observational placement, they may observe the practice of a Psychologist Grade 2.
8.3 Psychologist Grade 3
8.3.1 Is a person who is registered as a Psychologist with the PBA with a minimum of five years professional experience as a Psychologist Grade 2 (or equivalent), complies with the code of ethics and legal requirements of the psychology profession. May supervise Masters or Doctoral students with provisional registration who are on placement in a health service.
8.3.2 Only psychologists who are endorsed by the PBA to practice as clinical psychologists or clinical neuropsychologists shall be employed at this level or above in mental health services.
8.3.3 In addition, a Psychologist Grade 3 shall meet one of the criteria prescribed below.
(a) Is engaged on psychological work requiring advanced knowledge and skills. Indicators of advanced knowledge and skills include having responsibility for complex clinical cases, providing secondary consultation; and responsibility for the professional supervision of other psychologists. At this level the psychologist contributes to the evaluation and analysis of guidelines, policies and procedures applicable to their clinical/professional work and may be required to contribute to the supervision of Masters or Doctoral students.
(b) Is responsible for implementing clinical research projects, or pilot projects associated with service development, including data collection and analysis.
(c) Is the only psychologist employed by the employer.
(d) Is responsible for the supervision of other psychologists and meets the following criteria:
- implements and ensures that the work of the Psychologists complies with the planning and policy framework of the health service. And
- is responsible for the quality improvement activities of the other Psychologists;
- may have some responsibility for day to day administration.
8.3.4 A Psychologist Grade 3 shall be provided with regular professional supervision by a Psychologist Grade 4 or above. Where there is no Psychologist Grade 4 or above employed in the service, external supervision shall be provided.
According to her position description, Dr.Bleeser is ‘Clinically accountable to the Head of Alfred CAMHS through Team Leader’, and operationally and professionally accountable to the Senior Pyschologist 35. According to the Alfred Health work instruction on clinical supervision of all psychologists at Alfred Health certain requirements for clinical supervision must be met36.
1 [2005] 222 CLR 241
2 Ibid, para 96
3 PN375
4 Exhibit HSU4, paragraphs 29-34
5 HSU Final Submissions, paragraph 12, PN204, 267, 268, 313, 1193, 1194
6 Exhibit A5
7 Exhibit A1, paragraphs 30, pp.6-8, PN773-776, 790, 803-804, 864
8 Exhibit A3, paragraphs 9-10, specific comments on Dr.Bleeser’s witness statement, PN966, 1020, 1048-1049.
9 Eg. HSU’s Final Submissions, paragraph 14
10 Exhibit A1, paragraphs 5-6
11 Exhibit A1, paragraph 30
12 Exhibit A1, p.5
13 Exhibit A1, paragraph 30
14 Exhibit A1, p.8
15 HSU Final Submissions, paragraph 14(b)
16 Exhibit A3, paragraphs 1-3
17 PN70-88
18 Exhibit A5, p.2
19 Exhibit A5, p.3
20 Eg. Exhibit HSU 4, Attachment DJB5 p.9 ‘Who Do CAMHS see?’
21 Exhibit A2, paragraphs 7-9
22 HSU Final Submissions, paragraph 15
23 Exhibit A1, paragraph 18
24 PN698-700
25 Respondent Final Submissions, p.8
26 Applicant’s Final Submissions in Response, paragraphs 96-107
27 Exhibit HSU 4, paragraphs 37-42
28 Exhibit HSU 4, paragraph 36
29 PN1205-1209
30 PN990, 1113, 1115
31 Exhibit A3, PN990, 994
32 PN367-368, 388, 457, 464-465
33 Exhibit A1 p.6
34 HSU Final Submission in Response, paragraphs 3.1-3.5
35 Exhibit A1, Attachment LK1
36 Exhibit A1, Attachment LK3
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